Thank you very much, Chair.
Colleagues, I am joined today by Donald Piragoff, senior assistant deputy minister at the Department of Justice, as well as Nathalie Levman, whom I would describe as an expert in this legislation. She has had a great deal of input into both the drafting and the preparation of the legislation that you see before you, Bill C-36.
I want to begin by thanking you, Chair, and all members of this committee for your decision to undertake this important work during the summer months. I think it reflects very well on Parliament and this committee to demonstrate the commitment to bringing forward important legislation, particularly the work that will be done over the coming days.
I very much appreciate the committee’s decision to sit—exceptionally—in July to study this bill. Bill C-36 is the government’s legislative proposal in response to the Supreme Court of Canada’s Bedford decision, which found three Criminal Code prostitution offences unconstitutional. As you know, the court gave Parliament the opportunity to respond within one year.
Mr. Chair, colleagues, the government has made excellent use of the year to date. We are at, I note, the six-month mark since the handing down of the Bedford decision. We have undertaken and completed an initiation of a public online consultation, a process that garnered more than 31,000 responses. There have also been in-person round table meetings with a full spectrum of input from those who advocate for legalization to those who advocate for full criminalization, and participants in prostitution.
We then set about a drafting process, a legislative response, informed by those stakeholders but also by federal, provincial, and territorial and other stakeholder consultations, and the Bedford decision itself, as well as available research.
Time is of the essence, Mr. Chair. We are proceeding through a legislative process now, as you're aware and participating in, and we're anxious to hear the views of those who will appear before this committee. Importantly, if we do not respond legislatively within the year, most adult prostitution-related activities will be decriminalized.
For our government, to do nothing was never an option. The government does not accept the proposition that prostitution is inevitable and therefore that we must decriminalize and regulate it. This is not the position. On the contrary, the government maintains that prostitution's inherent harms and dangers would only grow and be exacerbated in a regime that perpetrates and condones the exploitation of vulnerable individuals through legalized prostitution.
Accordingly, Bill C-36 does not seek to allow or facilitate the practice of prostitution. To the contrary, its goal is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the extent possible.
Mr. Chair, similar approaches have been adopted, as you may know, or are under active consideration in several other countries, including France, Norway, Sweden, Denmark, and the United Kingdom. We also know that very often there are related issues that influence and affect those vulnerable persons. They include such things as violence, drug and alcohol addiction, and exploitation. And of course the subject of human trafficking is very often associated with prostitution.
So let me be clear at the outset that Bill C-36 reflects a fundamental shift towards the treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts marginalized groups and individuals. Bill C-36 recognizes that victims of prostitution are many, and in most cases they are vulnerable people, without doubt. Persons who sell their own sexual services are prostitution's primary victims. But prostitution also victimizes the communities in which it takes place, including children who may be exposed to it, and indeed society itself, by normalizing the gender inequalities inherent in prostitution and the objectification and commodification of individuals.
The cornerstone of Bill C-36's new approach is to reduce demand for prostitution by criminalizing the purchase of sexual services. The new purchasing offence is based on the existing offence that prohibits obtaining “sexual services for consideration” from persons under the age of 18 years.
Accordingly, case law interpreting that offence assists in defining the scope of the new purchasing offence, as does case law that interprets the meaning of prostitution, which is defined as the exchange of sexual services for payment. The court will consider whether sexual services in nature and whether the purpose of providing these services is to sexually gratify the person who receives them.
Here, Mr. Chair, case law is clear. However, this does not include acts related to the production of pornography or exotic dancing; ultimately, whether a particular act constitutes a sexual service for consideration is a factual determination to be made by the court. In other words, it will be up to the courts to interpret on a case-by-case basis.
To complement the purchasing offence, Bill C-36 also proposes to criminalize advertising—that is, the sale of sexual services—and authorize the seizure or removal of advertisements for sexual services. Prostitution, the sale of sexual services, is fuelled by demand, and advertising contributes to that demand. This is, I note, a departure from some of the other models that puts it in the category of a Canadian model.
Bill C-36 also seeks to continue to denounce and prohibit the exploitation of prostitutes by others, by third parties, commonly known as pimping. This includes the institutionalization of prostitution through commercial enterprise, such as strip clubs, massage parlours, and escort agencies in which prostitution often takes place. All of these capitalize on the demand created by purchasers.
Bill C-36 would achieve these goals through offences that would prohibit materially benefiting from the prostitution of others and procuring others to provide sexual services.
The material benefit offence would criminalize receiving a financial or material benefit obtained by or derived from the commission of the purchasing offence. It would replace the “living on the avails of prostitution” offence that was found unconstitutional in Bedford.
Bill C-36 would enable those who sell their own sexual services to interact with others on the same basis as anyone else. This goes to the specific dangers that are inherent in prostitution. It would do so through legalized exceptions to the material benefit offence that would apply to non-exploitative relationships. This is the operative phrase: “non-exploitative relationships”.
For example, the material benefit offence would not apply to children, spouses, or roommates of those who sell their own sexual services; those who take part in legitimate businesses, such as accountants, landlords, taxi drivers, pharmacists, or individuals who work for security companies; or those who offer goods or services informally, such as someone who offers babysitting services. So what we're talking about here are services that would be readily available to all Canadians.
This approach, Chair, recognizes that the objective of deterring and ultimately abolishing prostitution will take some time to realize and that some may continue to engage in it. Accordingly, Bill C-36 would allow those who continue to engage in prostitution to implement certain safety measures. But Bill C-36 also recognizes the inherent risks in allowing the development, or in not prohibiting the development, of economic interest in the prostitution of others, which so often leads to exploitative conduct to maximize profits.
I should pause here to say that if the non-exploitative relationship at some point changes—that is, if an individual who is assisting a prostitute without any material benefit, who is taking part in some of those examples I gave, suddenly then invokes violence and begins to exploit the prostitute—then the criminal immunity would disappear. So it is very much informed by the relationship with the prostitute.
Mr. Chair, this approach in Bill C-36 recognizes the risks inherent, as I mentioned. If a person who fits within one of the legislative exceptions becomes exploitative—for example, using violence, abusing a position of trust—that person would lose the protection of the exceptions and would be subject to charge under the material benefit offence. The proposed procuring offence would require active involvement in the prostitution of others, such as causing, inciting, or pressuring in any way others to engage in prostitution. This is consistent with the existing Criminal Code approach, I note.
Much has been said about the asymmetrical nature of these new offences—namely, that Bill C-36 proposes to criminalize the purchase but not the sale of sexual services. This is not because Bill C-36 in any way condones the sale of sexual services. It does not. Rather, it is because Bill C-36 treats those subjected to prostitution as victims, victims who require support and assistance rather than blame or punishment. This is a clear departure, again, from approaches we have seen previously in Canada.
Accordingly, Bill C-36 would expressly immunize from prosecution individuals who sell their own sexual services for any part they play in purchasing, material benefit, procuring, or advertising offences, or what you would call the “transactional” portion of prostitution.
We believe that the best way to address the harms that prostitution causes those subjected to it is to help them leave it. In that regard, the government has also announced that it will provide assistance through complementary funding of $20 million over 5 years.
These funds—$20 million—will be mainly directed to groups that will deliver front-line services to assist prostitutes to exit this activity. We have already begun the important ask of identifying which groups to partner with, Mr. Chair.
In addition to criminalizing communicating in any place for the purpose of purchasing sexual services, Bill C-36 would also criminalize communicating for the purposes of selling sexual services, but only in public places where children can reasonably be expected to be present. Mr. Chair, this is an approach we have borrowed from other sections of the Criminal Code, mainly those that protect children. There is a legal definition or interpretation already in place in the Criminal Code that deals with places where children can reasonably be expected to be present. This approach accounts for the various interests at play, which include not only those of prostitution's primary victims—the prostitutes—but also those of children who may be exposed to prostitution and thereby placed at risk of being drawn into a life of exploitation, recognizing the vulnerability and the lack of maturity of children, Mr. Chair.
Bill C-36 would also clarify that the definition of weapon includes weapons of restraint, for the purpose of the offences prohibiting assault with a weapon, so current section 267; sexual assault with a weapon, section 272; and the possession of a weapon with the intent to commit an offence, section 88. This approach provides an extra measure of protection for those at risk of being subject to this type of violence, including those who sell their own sexual services.
It's fair to say, Mr. Chair, colleagues, that the country was very much riveted by the tragic events that occurred in British Columbia and the mass murder that occurred in that province. The use of weapons, restraint—zip cords, duct tape, etc.—were very much instruments of foul play, so we've attempted in this legislation to recognize that and create this new offence.
Bill C-36 would also amend the human trafficking offences—a nod to my colleague from Kildonan—St. Paul for her good work—and attempts to ensure consistency with the proposed prostitution offences. It takes existing code sections and marries some of the intent there. Human trafficking and prostitution are often intricately linked criminal behaviours. Accordingly, criminal law responses to both activities require harmonization.
In conclusion, Chair, the government recognizes that Bill C-36's vision of a society free from prostitution's harms will take time to realize, and that some will remain subjected to prostitution while this transformation is under way. Therefore, Bill C-36 does not prevent implementation of certain safety measures emphasized by the Supreme Court of Canada in the Bedford decision, such as selling sexual services, including from fixed indoor locations; providing protective services to those who sell sexual services, as long as no exploitative relationship or circumstances exist; and negotiating safer conditions for the sale of sexual services in public places, other than where children could reasonably be expected to be present. We're balancing public interest and protection, and the moral obligation to protect children.
I stress, Mr. Chair, that this approach is not intended to facilitate or in any way condone the sale of sexual services. Rather, this bill addresses this complex societal policy issue by taking into account all of the safety concerns posed by it. These involve not just the concerns outlined in the Bedford decision, but also the broader safety and societal concerns posed by prostitution more generally, which include the need to protect those subjected to prostitution from violence and exploitation; the need to protect communities from prostitution's harmful affects, including exposure of children; and the need to protect society from the normalization of a gendered and inherently exploitative practice. It infringes on values of human dignity and equality.
The government also recognizes that achieving this transformation will require sustained, cooperative efforts in a wide cross-section of society. That is why the government is committing resources to support front-line organizations to assist those engaged in prostitution to exit. We look forward to working with provinces, territories, law enforcement—many organizations—and social workers who have been on the front lines of this effort for years, and this committee, of course.
Mr. Chair, faced with the Bedford decision and the one-year timeline, the government had a choice: condone the exploitation of vulnerable persons and harms to Canadian communities, or protect them. Informed by the Supreme Court's judgment in Bedford, available research, and the government's public consultations and obligations, we naturally chose the latter. We believe that this is a sound sensible law and entirely defensible.
I thank you for the invitation. I thank you again for your work, and I look forward to your questions. Merci beaucoup.
